Effective Date
January 1, 2023
These terms of service and Our Privacy Policy form a contract between You and Us and govern use of and access to the Service(s) and Our Websites by You, Your Affiliates, Users and End-Users.
By accessing or using the Service(s) or Websites, or authorizing or permitting any User or End-User to access or use the Service(s) or Websites, You agree to be bound by these terms of Services (“Terms”). If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Us that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms, “You”, “Your” or related capitalized terms used herein will refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not access or use the Service(s) or Websites.
You, as an individual, must be of the age of majority in your jurisdiction to access or use the Websites and the Service(s).
1. YOUR RIGHTS
1.1 These Terms are applicable during Your free trial and during Your subscription to the Service(s) through a Service Plan of Your choice.
1.2 Using Our Service(s): Subject to Your compliance with the Terms and solely during the Subscription Term, You have the limited, non-exclusive, and revocable right to access and use the Service(s) for Your internal business purposes. You will be responsible for use of the Service(s) through Your Account by any third parties. You may subscribe to one or more of the Service(s). They may be subject to separate and distinct Service Plans.
1.3 Using our APIs: Where applicable, our APIs must be used according to the API Policies We implement in this regard.
1.4 Using our Mobile Applications: Subject to Your compliance with the Terms and solely during the Subscription Term, You have the limited, non-exclusive, non-transferrable, and revocable right to download, install and use the Mobile Applications to access and use the Service(s) in accordance with the terms of use for the Mobile Applications.
2. YOUR RESPONSIBILITIES
2.1 Your Account: Subject to any limitation on the number of individual Users available under the Service Plan to which You subscribed, access and use of the Service(s) is restricted to the specified number of individual Users permitted under Your subscription to the Service(s). Each User will be identified using unique login information such as usernames and passwords (“User Login”) and such User Login will be used only by one individual. If You are a managed service provider and You wish to use the same User Login across Accounts that You manage for Your clients, You acknowledge that it is Your sole responsibility to obtain necessary consents from such clients. You are responsible for the confidentiality of Service Data and User Login. You should, therefore, not share Your User Login with any third parties. In any event, unless You notify Us of any unauthorized use or suspicious activity in Your Account, You are responsible for all activities that occur under Your Account. Group Companies will not be liable for any damage or loss that may result from Your failure to protect Your login information, including Your password. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Service(s) to store and transmit Service Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Service(s) or the information generated thereby is accurate or sufficient for Your purposes.
2.2 Your use of the Service(s): You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service(s) available to any third party, other than Users and End-Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service(s) to Process data on behalf of any third party other than Your Users and End- Customers; (c) modify, adapt, or hack the Service(s) or otherwise attempt to gain or gain unauthorized access to the Service(s) or related systems or networks; (d) use the Service(s) in any unlawful manner, including but not limited to violation of any person’s privacy rights; (e) use the Service(s) to send unsolicited communications junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (f) use the Service(s) to store or transmit any content that infringes upon any person’s intellectual property rights; (g) use the Service(s) in any manner that interferes with or disrupts the integrity or performance of the Service(s) and its components; (h) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any Software making up the Service(s); (i) use the Service(s) to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (j) use the Service(s) to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (k) establish a link to Our Websites in such a way as to suggest any form of association, approval or endorsement on Our part where none exists; (l) use the Service(s) for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, or sending electronic communications (including e-mail) in violation of applicable law; (m) use of the Service(s) for any purpose prohibited by applicable export laws and regulations; (n) try to use, or use the Service(s) in violation of these Terms.
2.3 You will be responsible for any loss of data or attempted or actual access or use of the Service(s) through Your Account in violation of these Terms.
2.4 If We inform You that a specified activity or purpose is prohibited with respect to the Service(s), You will ensure that You immediately cease use of the Service(s) for such prohibited activity or purpose.
3. ACCESS TO THE SERVICE(S)
3.1 You may not be able to access or use the Service(s) (a) during planned downtime for upgrades and maintenance to the Service(s) (of which We will use commercially reasonable efforts to notify You in advance through Our Service(s)) (“Planned Downtime”), or (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks.
3.2 We will use commercially reasonable efforts to schedule Planned Downtime for weekends (Pacific Time zone) and other off-peak hours.
4. CHANGES TO THE SERVICE(S) AND WEBSITES
4.1 Our Service(s): We may update the Service(s) from time to time and You may receive notifications of such upgrades, enhancements or updates (“Updates”). Any new or modified features added to or augmenting or otherwise modifying the Service(s) or other updates, modifications or enhancements to the Service(s) are also subject to these Terms and We reserve the right to deploy Updates at any time.
4.2 Websites: We may also change content on Our Websites at any time. However, please note that any of the content on Our Websites may be out of date at any given time, and We are under no obligation to update it. For clarity, this Subsection refers to Our Websites excluding the Service(s). We may discontinue or change any part of Our Websites, that does not affect the Service(s), without notifying You. Our Websites may contain links to websites, content and resources provided by third parties (“Third Party Links”). These Third Party Links are governed by their own terms and privacy policies and You agree that We have no control over these Third Party Links and are not responsible for Your access or use of these Third Party Links.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Ownership of IPR: Except for the rights granted to You under Section 1, all rights, title and interest in and to all Our patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights in or related to the Service(s), including the Websites, and any part of it (collectively, “Intellectual Property Rights”) will belong to and remain exclusively with Us. We are the owner or the licensee of all Intellectual Property Rights in Our Services and Our Websites, and the content or material published on it. Those works are protected by copyright laws and treaties around the world. You must not use any part of the content on Our Websites for commercial purposes without obtaining a license to do so from Us or Our licensors. Further, We claim no intellectual property rights over the content You upload or provide to the Service(s).
5.2 Grant of License to Us: We will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service(s) or Websites or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You.
5.3 Grant of License to You: Our product and service names, and logos used or displayed on the Service(s) or Websites are Our registered or unregistered trademarks (collectively, “Marks”), and You may only use such Marks to identify You as a user of the Service(s) You have subscribed to.
5.4 Reservation of Rights: All rights not expressly provided to You herein are reserved.
6. OTHER SERVICES
6.1 Certain other services (“Other Services”) such as integrations and Apps are made available to You through the Market Place or other forums where applications are developed for their integration with the Service(s). You have the option to enable these Other Services and integrate them into Our Service(s). These Other Services are governed by their own terms and privacy policies and You agree that We are not responsible for Your use of these Other Services. By enabling the Other Services, You understand and agree that We do not provide any warranties whatsoever for Other Services and We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You understand that We are not responsible for providing technical support for Other Services and that We are not responsible for the data hosting and data transfer practices followed by providers of such Other Services. To this extent, You will address any comments, queries, complaints or feedback about such Other Services to the respective developers or publishers as specified in the Market Place or other forums.
7. BILLING, PLAN MODIFICATIONS AND PAYMENTS
7.1 Subscription Charges: Unless otherwise specified in the Supplementary terms, except during Your free trial, all charges associated with Your Account (“Subscription Charges”) are due in full and payable in advance, in accordance with Section 7.2, when You subscribe to the Service(s). Unless specified otherwise in a Form, the Subscription Charges are based on the Service Plans You choose and are payable in full until You terminate Your Account in accordance with Section 8. You will receive a receipt upon each receipt of payment by Us. You may also obtain a payment receipt from within the Service(s).
7.2 Payment methods: You may pay the Subscription Charges through Your credit card, or other accepted payment method as specified in a Form. For credit card payments, Your payment is due immediately upon Your receipt of Our invoice. You hereby authorize Us or Our authorized agents, as applicable, to bill Your credit card upon Your subscription to the Service(s) (and any renewal thereof). For payments through other accepted methods, Your payment is due within thirty (30) days of Our invoice date unless otherwise stated in a Form.
7.3 Renewal: Your subscription to the Service(s) will renew automatically for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service(s) for any such subsequent Subscription Term will be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences. You acknowledge and agree that, unless You terminate Your Account in accordance Section 8, Your credit card will be charged automatically for the applicable Subscription Charges. We reserve the right to increase the Fees at the beginning of each Subscription Term, including any automatically renewed term. Any Fees for a renewed Subscription Term are due upon the date of renewal.
7.4 We may use a third party service provider to manage credit card and other payment processing; provided, that such service provider is not permitted to store, retain or use Your payment account information except to process Your credit card and other payment information for Us. You must notify Us of any change in Your credit card or other payment account information, either by updating Your Account or by e-mailing Us at support@tpssoftware.com.
7.5 Refunds: Unless otherwise specified in these Terms or a Form or a Service Plan, all Subscription Charges are nonrefundable. No refunds will be issued for partial use or non-use of the Service(s) by You.
7.6 Late Payments/Non-payment of Subscription Charges/Other Service Fees charged for training or conversion: We will notify You if We do not receive payment towards the Subscription or Other Charges within the due date for Your Account. For payments made through credit cards, We must receive payments due within a maximum of five (5) days from the date of Our notice and for payments through other accepted methods, We must receive payments within a maximum of fifteen (15) days from the date of Our notice. If We do not receive payment within the foregoing time period, in addition to Our right to other remedies available under law, We may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Your access to and use of the Service(s) until We receive Your payment towards the Subscription Charges as specified herein and/or; (iii) terminate Your Account in accordance with Section 8.2.
7.7 Upgrades and Downgrades: You may upgrade or downgrade within a Service Plan or between two Service Plans. You understand that downgrading may cause loss of content, features, or capacity of the Service(s) as available to You before downgrading Your Account. We will not be liable for such loss. When You upgrade or downgrade, the new Subscription Charges become immediately applicable. Upon upgrade, the new Subscription Charges for the subsisting month would be charged on pro-rated basis and Your credit card will be charged automatically. Subsequent months will be charged in full according to the new Subscription Charges. Upon downgrade, You will not be offered a refund for the payment made for the subsisting month in the form of credits credited to Your Account.
7.8 Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying the Taxes that would be levied against You by government authorities. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
7.9 User Benefits: Apart from the credits provided to You when You downgrade, We may, at Our sole discretion, offer You certain benefits such as discounts on Subscription Charges, extension in Subscription Term for no extra payments from You, with regard to the Service(s). These benefits are specific to Your Account and the Service(s) identified while offering these benefits. They are not transferrable. The benefits may have an expiry date. If they do not have an expiry date, they will expire upon completion of twelve (12) months from their date of offer.
8. SUSPENSION AND TERMINATION
8.1 We will not be liable to You or any other third party for suspension or termination of Your Account or access to and use the Service(s), if such suspension or termination is in accordance with these Terms.
8.2 Suspension and Termination by Us: In addition to suspension for late payment or non-payment of Subscription Charges, We may suspend Your access to and use of Your Account or the Service(s) if You are in violation of the Terms. We will notify You of Your activities that violate these Terms and, at Our sole discretion, provide You with a period of fifteen (15) days (“Cure Period”) to cure or cease such activities. If You do not cure or cease such activities within said Cure Period or if We believe that Your breach of these Terms cannot be cured, Your Account will be terminated. Further, You acknowledge that in the event You do not re-activate an Account within thirty (30) days from the expiry of a free trial or a suspension or lack of activity, We may terminate such Account and associated Service Data will be permanently deleted immediately upon such termination.
8.3 Termination by You: Subject to Section 8.4(b),if You pay for Your Account through credit card, You may elect to terminate Your Account at any time by clicking on the ‘Account Settings’ link in the ‘Admin’ page when You log in to Our Service(s). If payments for Your Account is made through other accepted payment methods, You may terminate Your Account by writing to support@tpssoftware.com.
8.4 Effect of Terminating Your Account: (a) Data Export: We strongly recommend that You export all Service Data before You terminate Your Account. In any event, following the termination of Your Account either by You or Us, unless otherwise specified elsewhere herein or in the Supplemental Terms and subject to the Data Processing Addendum, Service Data will be retained for a period of 14 days from such termination within which You may contact Us to export Service Data (“Data Retention Period”). Beyond such Data Retention Period, We will delete all Service Data in the normal course of operation. Service Data cannot be recovered once it is deleted. Further, when Service Data is migrated from one data center to another upon Your request, We will delete Service Data from the original data center after 14 days from such migration. (b) Charges: If You terminate Your Account prior to the end of Your then-effective Subscription Term or We effect such termination, in addition to other amounts You may owe Us, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term, unless waived by Us in writing. This amount will not be payable by You in the event You terminate Your subscription to the Service(s) or terminate Your Account as a result of a material breach of these Terms by Us, provided that You provide advance notice of such breach to Us and afford Us not less than thirty (30) days to reasonably cure such breach.
9. DATA PRIVACY AND SECURITY; CONFIDENTIALITY
9.1 If You choose, or You are provided with, a user identification code, password or any other piece of information as part of Our security procedures, You must treat such information as confidential. You must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by You or allocated by Us, at any time, if in Our reasonable opinion, You have failed to comply with any of the provisions of these Terms.
9.2 Confidentiality obligations: Each of us will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of us protects our own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use the other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and will disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this sub-section will supersede any non-disclosure agreement by and between You and Us entered prior to these Terms that would purport to address the confidentiality of Service Data and such agreement will have no further force or effect with respect to Service Data.
9.3 Security of Service Data: We use appropriate physical, technological and organizational measures to protect the Service Data that we Process. The measures we use are designed to provide a level of security appropriate to the risk of Processing your Service Data.
9.4 You understand that We and our Group Companies will Process Service Data in accordance with Applicable Data Privacy Laws and where applicable, the Data Processing Addendum which are incorporated into these Terms by reference and in accordance with Our Privacy Policy. You acknowledge and agree that Group Companies may also access or disclose information about You, Your Account, Users or End-Users, including Service Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect Group Companies’ or Our customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service(s); (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.
10. DATA MIGRATION
10.1 During Your Subscription Term, You may request Us to import data into Your Account (“Data Migration”). You hereby understand and acknowledge that We and/or Our Group Companies may access and process Your data in connection with providing You support during such Data Migration.
11. COMMUNICATIONS FROM US
11.1 Apart from the communications specified in Our Privacy Policy, We may contact You directly via e-mail to notify You if (a) You are in violation of these Terms; (b) A specific activity or purpose is prohibited with respect to the Service(s), so that You immediately cease use of the Service(s) for such prohibited activity or purpose; or (c) You maintain an exceptionally high number of Users, an unusually high monthly ticket ratio per Users, an unusually high level of open tickets or other excessive stress on the Service(s).
12. DISCLAIMER OF WARRANTIES
12.1 THE WEBSITES AND THE SERVICE(S), INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. WE EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, WARRANTIES OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
12.2 YOU ACKNOWLEDGE THAT WE DO NOT REPRESENT OR WARRANT THAT THE SERVICE(S) OR WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE AND YOU FURTHER ACKNOWLEDGE THAT WE DO NOT REPRESENT OR WARRANT THAT THE ACCESS TO THE SERVICE(S), WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
12.3 THE CONTENT ON OUR WEBSITES IS PROVIDED FOR GENERAL INFORMATION ONLY. IT IS NOT INTENDED TO AMOUNT TO ADVICE ON WHICH YOU SHOULD RELY. YOU MUST OBTAIN PROFESSIONAL OR SPECIALIST ADVICE BEFORE TAKING, OR REFRAINING FROM, ANY ACTION ON THE BASIS OF THE CONTENT ON OUR WEBSITES. NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE(S) OR WEBSITES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
13. LIMITATION OF LIABILITY
13.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, INCOME, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. FURTHERMORE, WE, OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS WILL NOT BE LIABLE TO ANY PERSON FOR LOST PROFITS THAT ARE DIRECT DAMAGES (RATHER THAN INDIRECT DAMAGES), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL BE LIMITED TO AN AMOUNT EQUAL TO THE LOWER OF (A) TWELVE MONTHS OF THE SUBSCRIPTION CHARGES FOR THE SERVICE(S) TO WHICH THE CLAIM RELATES; OR (B) THE SUBSCRIPTION CHARGES PAID BY YOU, FOR THE SERVICE(S) TO WHICH THE CLAIM RELATES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICE(S) IN ACCORDANCE WITH SECTION 1, WE HAVE LIMITED OUR POTENTIAL LIABILITY AND ALLOCATED RISKS BASED ON THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.
13.2 IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
13.3 THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
14. INDEMNIFICATION
14.1 If use of the Service(s) by You has become, or in Our opinion is likely to become, the subject of any IP Claim (defined below), We may at Our own option and expense (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify the Service(s) to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Us, terminate Your subscription to the Service(s) and repay You, on a pro-rated basis, any Subscription Charges You have previously paid Us for the corresponding unused portion.
14.2 Indemnification by Us: Subject to Your compliance with these Terms, We will indemnify and hold You harmless, from and against any claim brought against You by a third party alleging that the Service(s) You subscribed to infringes or misappropriates such third party’s valid patent, copyright, or trademark (an “IP Claim”). We will, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) You promptly notify Us of the threat or notice of such IP Claim; (b) We have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Us in connection therewith. We will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Us; or (iii) the combination, operation or use of the Service(s) with other hardware or software where the Service(s) would not by themselves be infringing.
14.3 Sections 14.1 and 14.2 state Our sole, exclusive and entire liability to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service(s) by You.
14.4 You will indemnify and hold Group Companies harmless against any claim brought by a third party against Us, and their respective employees, officers, directors and agents arising from or related to use of the Service(s) by You or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that We promptly notify You of the threat or notice of such a claim.
15. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
15.1 You will not, directly or indirectly, assign all or any Your rights under these Terms or delegate performance of Your duties under these Terms without Our prior written consent. We may, without Your consent, assign Our agreement with You under these Terms to any member of the Group Companies or in connection with any merger or change of Our control or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
15.2 These Terms, together with any Form(s) and Supplemental Terms, constitute the entire agreement, and supersede any and all prior agreements between You and Us with regard to the subject matter hereof. These Terms and any Form(s) will prevail over the terms or conditions in any purchase order or other order documentation You or any Entity You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. In the event of a conflict between any Form and these Terms, these Terms will prevail.
15.3 We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. Please read these Terms carefully before You start to use Our Service(s) or Websites, as these will apply to Your use of the Service(s) and Our Websites. Please check these Terms from time to time to take notice of any changes We made, as they will be binding on You. We will notify You not less than ten (10) days prior to the effective date of any amendments to these terms of service and Your continued use of the Service(s) following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. With respect to amendments only to the Supplemental Terms, We will notify You as aforementioned only if the Supplemental Terms are applicable to You. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
16. SEVERABILITY; NO WAIVER
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms will remain in effect. Our non-exercise of any right under or provision of these Terms does not constitute a waiver of that right or provision of the Terms.
17. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
18. SURVIVAL
Sections 2 (Your Responsibilities), 5 (Intellectual Property Rights), 7 (Billing, Plan Modification and Payments), 8 (Suspension and Termination), 9 (Data Privacy and Security; Confidentiality), 12 (Disclaimer of Warranties), 13 (Limitation of Liability), 14 (Indemnification), 18 (Survival), 19 (Notices; Consent to electronic communication) and 20 (Governing Law and Dispute Resolution) will survive any termination of Our agreement with respect to use of the Service(s) by You. Termination of such agreement will not limit Your or Our liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
19. NOTICES; CONSENT TO ELECTRONIC COMMUNICATIONS
19.1 All notices to be provided by Us to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or Canadian registered mail within Canada to the contact mailing address provided by You on any while subscribing to the Service(s); or (ii) electronic mail to the e-mail address provided for Your Account.
19.2 Our address for a notice to Us in writing by Courier or Canadian Mail is: T.P.S. Software Inc. PO BOX 75530 RPO Edgemont Village North Vancouver, BC V7R 4X1 with a CC to support@tpssoftware.com by electronic mail.
19.3 All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
20. GOVERNING LAW AND DISPUTE RESOLUTION
20.1 These Terms and your use of the Services will be governed exclusively by the laws of the Province of British Columbia and the federal laws of Canada applicable in British Columbia without regard to conflict of laws principles. You further agree that despite being available from a variety of jurisdictions, the Services (including access to the Websites) will be deemed solely based in the Province of British Columbia, Canada; and that the Services and the Website will be deemed to be passive in nature and not giving rise to personal jurisdiction over Us in jurisdictions other than the Province of British Columbia. Subject to Section 20.2, You hereby expressly agree to submit to the exclusive personal jurisdiction of the Supreme Court of British Columbia, Vancouver Registry for the purpose of resolving any dispute relating to the Terms or Your access to or use of the Service(s). However, You agree that nothing herein precludes Our application for injunctive remedies or other urgent legal relief in any jurisdiction.
20.2 Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, will be determined by arbitration in Vancouver, British Columbia before three arbitrators. Subject as set out below, any dispute, claim, or controversy arising out of or related to these Terms and the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the determination of the scope or applicability of these Terms to arbitrate, will be referred to and finally resolved by arbitration. Each party will (a) notify each other of any dispute within 30 days of when it arises and (b) attempt informal resolution prior to any demand for arbitration. Arbitration will be administered by the British Columbia International Commercial Arbitration Centre (“BCICAC”) (or its successor) pursuant to its Domestic Commercial Arbitration Shorter Rules of Procedure (if You are within Canada) or its International Commercial Arbitration Rules (if You are outside Canada), and conducted by a single arbitrator in Vancouver, British Columbia, Canada, unless the arbitrator determines differently. The appointing authority will be the BCICAC. The language of the arbitration will be English. Except as expressly provided herein, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Whether the dispute is heard in arbitration or in Court, You not will commence a class action, class arbitration or other representative action or proceeding Us.
21. DEFINITIONS
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
21.1 Account: means any accounts or instances created by or on behalf of You for access and use of any of the Service(s).
21.2 Affiliate: means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
21.3 Agent: means an individual authorized to use the Service(s) through Your Account for such Service(s) as an agent and/or administrator as identified through a User Login.
21.4 API: means the application programming interfaces developed, enabled by or licensed to Us that permits a User to access certain functionality provided by the Service(s).
21.5 API Policies: means the policies published on the Websites (as specified below) that govern the use of APIs, as updated from time to time.
21.6 Apps: mean the software applications listed on the Market Place which are created, developed, licensed or owned by Us or third party developers. The term also includes any updates, upgrades and other changes to such software applications and versions thereof.
21.7 Applicable Data Privacy Law: means the data protection laws that are applicable in the territory where You are established. If you are established in the European Economic Area, this means (i) prior to 25th May 2018, the Directive 95/46/EC on the protection of individuals with regard to the Processing of Personal Data and on the free movement of such data and (ii) after 25th May, 2018, the EU Regulation 2016/679 (General Data Protection Regulation) and any applicable national laws made under it; where You are established in Switzerland, means the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded).
21.8 Confidential Information: means all information disclosed by You to Us or by Us to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Service Data will be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information will not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party will, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
21.9 Data Processing Addendum: means the data processing addendum available at Data Processing Addendum and as updated from time to time, which will govern Service Data to the extent that it includes Personal Data (as defined in the GDPR) and involves transferring such Personal Data (as defined in the GDPR) outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data
21.10 Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service(s) provided or made available by Us to You or Your Users through the Service(s) or otherwise.
21.11 End-User: means any person or entity other than You or Your Users with whom You interact using the Service(s).
21.12 Form: means any online or hard copy service order form referencing these Terms and accepted, executed or approved by You and Us with respect to Your subscription to the Service(s), which form may detail, among other things, the number of Users authorized to use the Service(s) under Your subscription to the Service(s) and the Service Plan(s) applicable to Your subscription to the Service(s).
21.13 Group Companies: means T.P.S. Software Inc. together with its Affiliates.
21.14 Market Place: means an online marketplace for Apps that interoperate with Our Service(s).
21.15 Mobile Applications: mean the software applications created, developed and owned by Us to enable access and use of the Service(s) through mobile or other handheld devices (such as apps on iOS or Android devices).
21.16 Personal Information: means information or data relating to an identifiable individual, such as name, address, date of birth, contact information (including home telephone number and personal e-mail address), employment status, and income.
21.17 Privacy Policy: means Our privacy policy at Privacy Policy as updated from time to time.
21.18 Processing/To Process: means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
21.19 Service Data: means all electronic data, text, messages or other materials, including Personal Information of Users and End-Users, submitted to the Service(s) by You through Your Account in connection with Your use of the Service(s), including, without limitation, Personal Information.
21.20 Service(s): mean and include Axis, any new services that We may introduce as a Service to which You may subscribe to and any updates, modifications or improvements to the Service(s), including individually and collectively, Software, the API and any Documentation. You may subscribe to one or more of the Service(s). They may be subject to separate and distinct Service Plans.
21.21 Service Plan(s): means the pricing plan(s) and the functionality and services associated therewith (as detailed on the Websites) for which You subscribe with respect to any User.Software: means software provided by Us (either by download or access through the internet) that allows You to use any functionality in connection with the Service(s) and includes a Mobile Application.
21.22 Subscription Term: means the period during which You have agreed to subscribe to the Service(s) with respect to any individual User.
21.23 Supplemental Terms: means the Service(s) – specific terms set forth in Section 22 below, additionally applicable to You when You enable, access or use such Service.
21.24 Us: means T.P.S. Software, Inc., a British Columbia corporation, or any of its successors or assignees. In these Terms, Us may also be referred to as “We”, and “Our”.
21.25 User: means those who are designated users within the Service(s), including an Account administrator, Agents and other designated users.
21.26 Websites: means the websites for various Service(s) and other websites that TPS Software operates.
22. SUPPLEMENTAL TERMS
The Supplemental Terms below may contain terms that are specific to one or more Service(s). For avoidance of doubt, in the event of a conflict or inconsistency between the rest of the Terms and these Supplemental Terms, these Supplemental Terms will prevail.
23. FOR USE OF APPS, INTEGRATIONS; MODIFICATION OF EXISTING FEATURES & NEW FEATURE RELEASE
You acknowledge that (a) when You install any of the Apps or enable integrations or (b) where (i) a feature is modified or (ii) a new feature is released within the Service(s), You may be shown additional terms governing their usage. Your continued usage of such Apps or integrations or such features may be relied upon by Us as Your acceptance of such additional terms.